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1976 July 1 GEORGHIOS MITSIDES [TRIANTAFYLLIDES, P., STAVRINIDES, L. LOIZOU A. Loizou, MALACHTOS, JJ.] GEORGHIOS MITSIDES, v. Appellant, CYPRUS BROADCASTING CORPORATION v. THE CYPRUS BROADCASTING CORPORATION, Respondent. (Revisional Jurisdiction Appeal No. 168). Cyprus Broadcasting Corporation—Officers of—Interchange of Posts of Head of Radio Programmes and Television Programmes Divisions—Posts concerned equivalent but not entailing entirely the same duties—Appellant at material time not merely holder of post of Head of Television Programmes Divhion but was offered, 5 in 1962, and accepted appointment thereto—Irrespective of how subjudice decisionformulated, ineffect amounted to an interchange of posts—Which deprived appellant of his substantive appointment for an indefiniteperiod of time—Not open to respondent to act as it did—Sub judice decision annulled as having been taken 10 in excess of powers. Administrative Law—Excess of powers—Decision relating to interchange of posts in Cyprus Broadcasting Corporation—Annulled as having been taken in excess of powers. The appellant who was the Head of the Television Program- 15 mes Division of the respondent Corporation was assigned the duties of the Head of the Radio Programmes Divisions with effect from the 1st June

  1. This assignment was made in persuance of a decision* of the respondent corporation taken on May 13, 1971 "for the interchange of the duties of the Heads of 20 the Radio Programmes and Television Programmes Divisions, Mr. Char. Papadopoulos and Mr. G. Mitsides". At the material time the appellant was not merely the holder of the post of Head of a Division, but he was offered, on April * Quoted at p. 195 post. 192 5 10 15 20 25 30 35 40 23, 1962, and accepted, appointment to the particular post of Head of the Television Programmes Division. A comparison of the schemes of service of thatpost and of thepost ofHead of the Radio Programmes Division showed that the two posts concerned were equivalent posts but they were not posts entailing entirely the same duties. Upon appeal against the dismissal of the recourse which was directed against the validity of the said decision of the respondent Corporation, themain issuewaswhether or not therespondentwasempowered totaketheaction complained ofbyappellant; and intrinsically connected with such issue was the question of what was the true nature of such action. Counsel for the appellant submitted that it was an interchange of posts. On the other hand, counsel for the respondent described it as an interchange of duties; and he submitted, further that it was legitimately opentotherespondent toactin themanner complained of because of the provisions of paragraph 5 of "General Notes"* to the schemes of service of the personnel of the respondent, which were adopted in
  2. Held,

(1)irrespective of how the subjudicedecision was formulated in effect it amounted to an interchange of posts.
(2)Even assuming that a provision such as that made by paragraph 5 of the "General Notes" could have been put into force bymeans ofNotestothescheme of service—asit hasbeen done—and not only by means of Regulations enacted for this purpose, and even assuming that the term "officer" in such paragraph could be construed, in spite of the indication to the contrary in paragraph 2 of the "General Notes", as including a Head of Division of the respondent Corporation, it cannot be said that what has actually taken place, in the present instance, - wassomething envisaged byparagraph 5,because the appellant was not merely called'upon to perform "the duties of a relative post of comparative grade" without being deprived of his substantive appointment. What took place was a much more radical and permanent arrangement, which was made for an indefinite period of time and which actually continues to be still in force today, five years later. Also, such arrangement resulted in depriving the appellant of the substantive appointment given to him in 1962, because it amounted, as already found by this Court to an interchange of posts. • Quoted at p. 198 post. 193 1976 July l GEORGHIOS MITSIDES v. CYPRUS BROADCASTING CORPORATION 1976 July 1 GEORGHIOS MITSIDES v.
(3)Consequently, it was not open to the respondent to act in such a manner and, therefore, this appeal must be allowed and the subjudicedecision of the respondent must be annulled as having been taken in excess of powers. Appeal allowed. CYPRUS BROADCASTING CORPORA!ION Appeal. Appeal against thejudgment of a Judge of the Supreme Court of Cyprus (Hadjianastassiou, J.) given on the 27th October, 1975 (Case No. 288/71)whereby applicant's recourse against the decision of the respondent to assign to him the duties of Head of Radio Programmes was dismissed. 10 K. Talarides, for the appellant. G. Polyviou, for the respondent. Cur. adv. vult. The judgment of the Court was delivered by:The appellant has appealed from an in the first instancejudgment* of a Judge of this Court in recourse 288/71, by means of which there was dismissed the appellant's claim for the annulmentof the decision of therespondentCorpo­ ration to assign to him the duties of "Head of the Radio Pro­ grammes Division" in the service of the respondent. 15 TRIANTAFYLLIDES, P.: 20 The said decision was communicated to the appellant by a letter dated May 15, 1971, which reads as follows:" Kov. Γ. Μιτσίδην, Διευθυντήν Προγ. Τηλεοράσεως, 25 Ώς σας άνεκοίνωσακσΐ χθες προφορικώς, απότηςπρώτης προσεχούς Ιουνίου αναλαμβάνετε επισήμως, καθήκοντα Δι­ ευθυντού Προγραμμάτων Ραδιοφώνου, κατ' άπόφασιν τοΰ Ιδρύματος. 'Αναμένω δτι έν τω μεταξύ καΐ Θά κατατοπίσετε τον κ. ^0 Παπαδόπουλου καΐ θά κατατοπισθητε ύπ' αύτοΰ ώστε ή με­ τάβασης νά γίνη κατά τον πλέον όμαλόν τρόπου καΐ υά Βιαρκέση δσου το δυνατόν όλιγώτερον. Α. Χριστοφίδης, Γενικός Διευθυντής." 35 • Reported in
(1975)3 C.L.R.
  1. 194 ' ( " M r . G. Mitsides, . . . .<••• . : . .. • ' Head of the Television Programmes Division, As I have informed you also orally yesterday, as from the first of next June you will take up officially the duties of Head of the Radio Programmes Division in accordance with a decision of the Corporation. . 1976 July 1 GEORGHIOS MITSIDES v. CYPRUS BROADCASTING CORPORATION ΙΟ I expect that in the meantime you will brief Mr. Papadopoulos, and you will be briefed by him, so that the han­ ding over will be effected in as smooth a manner as possible and that it will last for as short a time as possible. A. Christofides, Director-General"). 15 The above,letter was written as a result of the following de­ cision which was taken by the Board of the respondent on May 13, 1971, and was as follows:"
  2. 'Εναλλαγή καθηκόντων Διευθυντού Προγραμμάτων. 20 25 30 35 Ό Πρόεδρος άυέφερεν ότι ετέθη ύπ* δψιν του σκέψις τοΰ Γενικού Διευθυντού ώς καΐ σημείωμα του σχετικώς μέ τήν αναγκαιότητα εναλλαγής καθηκόντων μεταξύ των Τμηματαρχών Προγραμμάτων Ραδιοφώνου και Τηλεοράσεως κ.κ. Χαρ. Παπαδοπούλου καΐ Γ. .Μιτσίδη. Ό Πρόεδρος έδήλωσεν ότι συμφωνεί διά τήυ έυαλλαγήυ, επί τη βάσει καϊ των βασικώνστοιχείων διευθυντικών μεθόδων σχετικών μέ τήν Οπό τάς εκάστοτε περιστάσεις'καλυτέραν δυνατόν άϋιοποίησιν τοΰ ανωτέρου προσωπικού. Τα συζητηθέντα σχέδια τοΰ Ιδρύματος διά τήν προσεχή πενταετίαν εξυπηρετούνται επίσης καλύτερον δια τής ώς άνω εναλλαγής,' κατέληΕε. Το Συμβούλιον, πλήυ τοΰ κ. Παπαγεωργίου, συνεφώνησε προς τάς εκτεθείσας απόψεις, άφοϋ ήκουσε περαιτέρω διευ­ κρινήσεις δοθείσας Οπό τοΰ Γενικοΰ Διευθυντοϋ. Ή εναλλαγή καθηκόντων θά πραγματοποιηθη άπό της 1ης προσεχοΰς - •" Ιουνίου." • ( "
  3. Interchange of duties of Heads of the Programmes Divisions. The Chairman stated that there had been put to him an idea, as well as a memorandum, of the Director-General 195 1976 July 1 GEORGHIOS MITSIDES v. CYPRUS BROADCASTTNO CORPORATION regarding the need for the interchange of the duties of the Heads of the Radio Programmes and Television Program­ mes Divisions, Mr. Char. Papadopoulos and Mr. G. Mi­ tsides. The Chairman declared that he agreed to the inter- 5 change, in view, also, of basic notions of managerial me­ thods regarding the best possible, under the from time to time prevailing circumstances, utilization of higher ranking personnel. He concluded by saying that the already dis­ cussed plans of the Corporation for the next five-year 10 period would, also, be better served by such interchange. The Board, with the exception of Mr. Papageorghiou, agreed with the views so expressed after having heard further clarifications which were given by the Director-Ge­ neral. The interchange of duties is to be effected as from 15 the 1st of next June"). The main issue which has been argued in the present appeal is whether or not the respondent was empowered to take the action complained of by the appellant; and intrinsically connected with such issue is the question of what is the true nature of such 20 action. Counsel for the respondent has described it as an interchange of duties; on the other hand, counsel for the appel­ lant has submitted that it was an interchange of posts. Having carefully weighed all relevant considerations we have reached the conclusion that the above submission of counsel 25 for the appellant is right. Irrespective of how the above-quoted letter and decision were formulated, what has, in effect, taken place is an interchange of posts between the appellant, who was at the time the Head of the Television Programmes Division, and Mr. Charilaos Papadopoulos,who was then the Head of the 30 Radio Programmes Division; and,it is rather significant to note, in this respect, that at the end of the relevant written memoran­ dum, which was put before the Board of the respondent, it was stated that the appellant had to be "emplaced in the post" of Head of the Radio Programmes Division (" επιβάλλεταιή το- 35 πσθέτησις τοΰ κ. Γ. Μιτσίδη είς τήν θέσιν τοΰ Διευθυντού Προ­ γραμμάτων Ραδιοφώνου"). It should be borne in mind in the above connection that the appellant was not at the material time merely the holder of the post of Head of a Division of the respondent Corporation, but 196 40 that he was offered, on April 23, 1962, and accepted, appointment to the particular post of Head of the Television Programmes Division. Moreover, acomparison oftheschemesofserviceofthat post and of the post of Head of the Radio Programmes Division, to which the appellant wasmoved as a result of the subjudice decision of the respondent, shows that'the two posts concerned areequivalent posts,but theyarenot postsentailing entirelythe same duties; and we formed this view after examining the re10 levant schemes of service which were in force in 1962, those which replaced them in 1964, as well as those which were adopted later in
  4. We are dealing, therefore, with a decision of the respondent Corporation which resulted in the interchange of posts with 15 similar, but not identical,duties. It has to be examined, next, whether it was possible for the respondent to take such a decision in the exercise of its relevant powers: It has been very fairly conceded by learned counsel for the 20 respondent that thiswasnot acaseofameresecondment effected under regulation 10of the Cyprus Broadcasting (Conditions of Service) Regulations,
  5. He has submitted, however, that it was legitimately open to therespondent toact inthemanner complained ofbytheappel25 lant, and he relied, in support of this submission, on paragraph 5 of what areknown as the "General Notes" to the schemesof service of the personnel of the respondent; these "General Notes"wereadopted on May 1, 1969,and read asfollows:- 30 35 " GENERAL NOTES: I. The following general conditions and requirements are applicable to all posts within the Corporation and should be considered to form an integral part of the duties and responsibilities contained in the Schemes of Service for all posts.
  6. All officers are responsible to the Head of their Division and work under his direction, due regard being paid to hierarchy in each of the sub—sections of each Division. 197 1976 July 1 GEORGHIOS MITSIDES v.' CYPRUS BROADCASTING CORPORATION 1976 July 1
  7. All officers will also perform any other appropriate duties that may be assigned to them. GEORGHIOS MITSIDES
  8. AH officers may be called upon to work in shifts, during weekends and public holidays and outside normal hours. v. CYPRUS BROADCASTING CORPORATION
  9. All officers may becalled upon to perform the duties of a relative post ofcomparative grade in another Division of the Corporation.
  10. Holders ofpostswhichcarry a higher salary than the scale provided in these Schemes of Service, will maintain 10 their old scale as apersonal one to themselves, irrespective of whether they may hold their present post or be offered appointment to another post the salary of which may be lower.
  11. In all cases of promotion candidates must have the 15 written recommendation of the Corporation as to their general fitness for the new post, their character, initiative and general demeanour.
  12. The Corporation reserves therightto keep established posts vacant for a period not to exceed one year unless 20 thepostisabolished, and toengageagainstsuchpost officer in a lower grade or on temporary basis (on contract or wages)." It is quite clear that by means of such "General Notes" an effort was made to introduce into all the schemes of service 25 certain terms and conditions applicable to the officers of the respondent. Even assuming that a provision such as that made by paragraph 5 of the "General Notes", above, could have been put into force by means of Notes to the schemes of service—as it 30 has been done—and not only by means of Regulations enacted for this purpose, and even assuming that the term "officer" in such paragraph could be construed, in spite of the indication to the contrary in paragraph 2 of the "General Notes", as including a Head of a Division of the respondent Corpora- 35 tion, wecannot agree that what has actually taken place, in the present instance, was something envisaged by paragraph 5; because the appellant was not merely called upon to perform "the duties of a relative post of comparative grade" without 198 5 being deprived of his substantive appointment. What took place was a much more radical and permanent arrangement, which was made for an indefinite period of time and which actually continues to be still in force today, five years later. 5 Also, such arrangement resulted in depriving the appellant of the substantive appointment given to him, as aforesaid, in 1962, because it amounted, as already found by us, to an interchange of posts. Consequently, wedo not agree that it was open to the respon10 dent to act in such a manner and, therefore, this appeal must be allowed and the subjudice decision of the respondent must be annulled as having been taken in excess of powers. As we have not been invited to treat this case as one of a transfer we do not have to examine, and we leave entirely open, 15 the question of whether or not what has been sought to be done under paragraph 5 of the "General Notes" to the schemes of service could now be accomplished in the exercise of the powers vested in the respondent by section 3 of the Public Authorities (Regulation of Personnel Matters) Law, 1970 (Law 61/70). 20 25 As regards costs,'we have decided, in the light of all relevant considerations, not to award to the appellant the costs of the trial, but we award him, against the respondent, an amount of G£50 towards the costs of this appeal. Appeal allowed. Orderfor costs as above. 199 1976 July 1 GEORGHIOS MITSIDES v. CYPRUS BROADCASTING CORPORATION

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